[lit-ideas] Re: Food for thought
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Mon, 30 Nov 2009 07:56:36 -0800 (PST)
--- On Sun, 29/11/09, Walter C. Okshevsky <wokshevs@xxxxxx> wrote:
> Quoting Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>:
>
> snip
>
> > Laws against theft and violence may be described as
> based
> > on a collective view of their unacceptable "social
> effect" that is backed up
> > by the coercive power of the state.
>
> WO: I don't believe such a consequentialist/utilitarian
> conception of the
> validity of positive law is at all cogent.
That's as may be: but would not _necessarily_ mean that laws _may_ not be so
described (things may be described in ways that, on examination, lack cogency;
unless we use some "doctrine of sense" to define this possibility out of
existence i.e. if not cogent ergo not proper possible description). Wading into
this jurisprudence is further than my comment was intended to go, I feel, since
it might be accepted without accepting a "conseqts/utiln" ethics.
Positive laws
> proscribing, for
> example, theft and violence are not "based" on some kind of
> consensus on the
> undesirable social consequences of such acts, if by "based"
> we mean justifying
> grounds for their moral wrongness and amenability to legal
> sanction.
The comment made did not assert such a consensus would _de jure_ justify "moral
wrongness", though it might be a _de facto_ justification. Nor is the comment
using '"based" on consensus' to assert a Social Contract as some historical
reality: it is enough that they may be "based" on consensus to the extent that
if we wanted the rules abolished or altered we might do so within our
democratic system. The comment does imply that some measure of consent does
underlie the continued efficacy of such laws, especially perhaps in a
democratic system, but it is left open how that consent is measured and how it
impacts on continued efficacy. Given all this, I do not see how...
> Such a
> view leads only to rampant relativism.
The following is spoken like a subscriber to P's OSE, where he completely
opposes "majoritarian" justifications of democracy [and of laws]...
> And surely the
> coercive power of the
> state is not itself justified by majoritarian views on what
> is "acceptable."
But this is perhaps far removed from the point of the comment which now escapes
me.
Dnl
Ldn
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